Friday, July 10, 2009

Some background: Royalty Logic had filed a motion questioning the constitutionality of the US Copyright Royalty Board (CRB). If the courts agreed with Royalty Logic's arguments, rates previously set by the CRB may have been invalidated, which is why many groups, including the NMPA, opposed the motion.

The good news about the US Appeals Court's choice is that the rate setting process will not have to restart at square one. However, I think it is bad news that left intact is the CRB's effective decision to grant Sound Exchange a limited monopoly as the sole designee entitled to collect master performance royalties in the United States.

Royalty Logic had originally filed its motion because it too wanted to be an master performance royalty collection agent.

I do not support Royalty Logic's positions on all matters, but ultimately I am concerned that recording artists and record labels will have no choice of collection agents for the master performance royalties contemplated by the Digital Milennium Copyright Act (unlike songwriters and publishers, which may choose to affiliate with one of three major performance rights societies: ASCAP, BMI or SESAC).

Sound Exchange may have won this battle, but perhaps there will soon be another opportunity to introduce competition in the master performance royalty collection marketplace. After all, one thing that set the US music industry apart from the rest of the world is that it allowed competition amongst collection agents.

Wednesday, July 8, 2009

"What is the best way to copyright your songs? My band is going to do a live streaming web show and I'm leery of playing original material over the web without it being copyrighted."

James, your composition is already "copyrighted" if you have recorded it. According to US copyright law, a song (i.e., a "work") is created when it is "fixed." That means, when you transcribe your song on paper or record it for playback, you automatically own the copyright to that work. You may print the circle-c copyright symbol on any copies of your compositon at this point.

However, in order to protect your copyright, I recommend that you register your copyright with the Library of Congress ("LOC") using one of the following methods:

Complete Form CO on your personal computer, print it out, and mail it along with a $45 check or money order and your deposit (i.e., one copy of your unpublished work or two copies of your published work). (Form CO is here, instructions are here, and a FAQ is here)

Complete the old hardcopy Form PA, and mail it along with a $45 check or money order and your deposit. The LOC is phasing out these paper forms, so Form PA not accessible on the Copyright Office website; however, you may request that the LOC send you a copy of Form PA by postal mail here.

By the way, you can register your sound recordings too (use Form SR instead of Form PA and a circle-P symbol), the copyright to which is separate from the underlying composition, which is an important distinction to understand.

Certain attorneys have suggested as a money-saving strategy collective registeration of multiple works as a single work. Any registration is better than nothing, but I advise against it for a number of reasons. Most importantly, databases of works and ownership information are key. If you do not register each individual work with the Library of Congress, I am concerned that in the future, users of your song may not be able to find it in the LOC databases if it is listed under the title of a collection of works. If a user cannot find the work, it won't find its owner and your work may be deemed an "orphan work," which may entitle such users to make and distribute copies of your work without a license and not pay you until you can prove that the work is yours. Further, you may not be entitled to damages. Therefore, for maximum copyright protection, I suggest you register each work individually. However, this is just my opinion.

There is an easier and cheaper method to protect your copyright than LOC registration, but it won't offer you the same level of protection that a LOC registration offers: The so-called "Poor Man's Copyright," whereby you mail yourself a copy of your song and save the unopened envelope with the post office's date stamp intact to prove the date of the copyright. The Poor Man's Copyright is better than doing nothing (it can help prove you are innocent if someone accuses you of plagiarism), but there are at least two big problems with this method:

If you have not properly registered your copyright with the Library of Congress, you will not be entitled to damages.

As I mentioned above, I believe detailed databases of works and ownership information will be used in the future more than ever. If you do not register your work with the Library of Congress, users of your work may not be able to find its owner and your work may be deemed an "orphan work," which may entitle such users to make and distribute copies of your work without a license and not pay you until you can prove that the work is yours. Therefore, register your copyrights with the Library of Congress!

That said, even if you do everything right, it costs a lot of money to go after an infringer. The best thing musicians have going for them is their prolific creativity and the knowledge that individuals and entities may infringe on your copyright, but that won't stop you from creating something better in the future. Don't let the reality of infringement and scam artists keep you from making - and sharing - great music!

Next time maybe I will post about streaming royalties, since a lot of independent musicians like James are making their music publicly available this way.